Revisiting Judicial Politics and Democratic Legitimacy in Turkey: A Critical Response to “Bad Institutions, Worse Allies”

 

Prof. Dr. Firuz Demir Yasamis

 

 

Abstract

This article critically reassesses the arguments advanced in “Bad Institutions, Worse Allies: The Case of Turkey,” [1] particularly its conceptualization of judicial capture, elite authority, and democratic legitimacy. While the article offers an important contribution to the study of judicial politics and democratic backsliding, it relies on three analytically problematic assumptions: (i) the mischaracterization of indirect presidential election as absence of democratic legitimacy, (ii) the implicit privileging of direct election as the primary benchmark of democracy, and (iii) the over extension of the “court capture” framework as a unified explanatory category. This article argues that such assumptions obscure the institutional logic of parliamentary systems and produce a reductionist interpretation of Turkey’s constitutional trajectory. A more adequate analysis must account for competing forms of institutional legitimacy and the recursive dynamics between judiciary and executive authority.

Keywords: Turkey, judicial politics, constitutional courts, democratic legitimacy, parliamentary systems, court capture, autocratization

 

1. Introduction

The literature on democratic backsliding has increasingly emphasized the role of courts and judicial-selection mechanisms in enabling or constraining executive power. Within this framework, “Bad Institutions, Worse Allies: The Case of Turkey” presents a compelling argument: that judicial institutions designed under Turkey’s 1982 Constitution facilitated elite-driven court capture, which in turn constrained elected governments and contributed to democratic erosion.

While the article provides valuable empirical insights into judicial behavior in Turkey, its analytical framework is shaped by a set of conceptual assumptions that require closer scrutiny. These include (i) the treatment of indirect electoral legitimacy as non-legitimacy, (ii) an implicit hierarchy between direct and indirect democratic mechanisms, and (iii) a reduction of complex institutional dynamics into a singular “capture” narrative.

This article does not dispute the relevance of judicial politics in Turkey’s democratic transformation. Instead, it argues that the explanatory framework employed in the original article is overly reductive and insufficiently attentive to comparative constitutional variation.

2. Mischaracterizing Electoral Legitimacy in Parliamentary Systems

2.1 The constitutional status of the presidency: A central issue in the original article is the characterization of Turkey’s pre-2007 presidency as “non-elected.” This claim is inaccurate in comparative constitutional terms. Prior to the 2007 constitutional amendment, the President of the Republic of Türkiye was elected by the Grand National Assembly. This mechanism constitutes a parliamentary mode of indirect democratic legitimacy, not an absence of electoral legitimacy. The distinction is crucial. Parliamentary systems routinely derive executive or ceremonial authority from legislative bodies rather than direct popular vote. This institutional design reflects a different but equally valid democratic logic.

2.2 Comparative perspective:  Comparable systems include Germany and Italy. In both cases, heads of state are selected indirectly without any implication of democratic deficit.

2.3 Analytical implication: Therefore, the term “non-elected president” introduces a normative distortion, implying that only direct popular election confers democratic legitimacy. This assumption is not supported by comparative constitutional practice.

3. The Normative Fallacy of Direct Election

3.1 The implicit hierarchy problem: The article implicitly assumes that direct election is the primary or superior form of democratic legitimacy. This assumption reflects a presidentialist bias in democratic theory. However, democratic legitimacy is not reducible to electoral modality. It is constituted through a broader set of institutional mechanisms: competitive elections, rule of law, institutional accountability and separation of powers.

3.2 Theoretical clarification: In comparative politics, both direct and indirect electoral systems are recognized as legitimate democratic arrangements. The key criterion is not the mode of selection but the presence of accountable and competitive institutional structures.

3.3 Implication for the Turkish case: Interpreting indirect election as democratic deficiency leads to systematic misclassification of parliamentary systems and distorts the comparative baseline used in the article.

4. Methodological Concerns: Evidence Standards and Informal Causal Claims

A central methodological issue in the article under review concerns the use of claims that imply informal chains of command between the military and judicial institutions, particularly the Constitutional Court of Turkey. In several instances, the argumentation appears to suggest that the Constitutional Court operated under implicit directives from military actors. However, these claims are not substantiated by verifiable empirical evidence, judicial records, or institutional documentation.

From a methodological standpoint, such assertions raise concerns regarding the standard of evidence required in comparative political analysis. In the absence of systematically documented proof—such as declassified official communications, credible insider testimonies subjected to triangulation, or peer-reviewed empirical studies—such claims remain at the level of conjecture rather than empirically grounded inference.

 

While it is widely acknowledged in the literature that civil–military relations have historically played a significant role in shaping Turkey’s political and constitutional development, analytical precision requires a clear distinction between structural influence and direct command authority. The former refers to the broader historical and institutional context in which military actors may exert indirect pressure on civilian institutions; the latter implies a hierarchical relationship of instruction and compliance that requires a substantially higher evidentiary threshold.

Conflating these two analytically distinct categories risks introducing what may be termed informal causal shortcuts, where complex institutional interactions are reduced to simplified and unverified chains of control. Such simplification may inadvertently shift the analysis away from institutional explanation toward narrative-driven interpretation, thereby weakening the explanatory robustness of the argument.

This concern is particularly important in comparative constitutional analysis, where similar institutions in consolidated democracies—such as the German Federal Constitutional Court, the Italian Constitutional Court, and the Spanish Constitutional Tribunal—are not analyzed through the lens of informal military directives, even in contexts where civil–military tensions have historically existed. The absence of such interpretive frameworks in comparable cases underscores the need for caution in attributing direct external command influence to judicial bodies without rigorous evidentiary support.

Accordingly, a more analytically robust approach would conceptualize the Turkish Constitutional Court’s behavior within a framework of institutional autonomy under conditions of historical tutelage, rather than implying unverified command relationships. Such an approach preserves both the complexity of Turkey’s civil–military legacy and the methodological rigor required in comparative judicial politics.

5. Judicial Politics and the Problem of “Court Capture”

5.1 Conceptual utility and limits: The concept of “court capture” is widely used in political science to describe the subordination of judicial institutions to political actors. However, its analytical utility depends on precise specification of mechanisms. The original article applies the concept in a broad manner that conflates distinct phenomena: constitutional interpretation, civil-military influence, bureaucratic institutional continuity and ideological jurisprudence

5.2 Alternative explanatory frameworks: Judicial behavior in Turkey during the relevant period may also be interpreted through: constitutional guardianship logic, path-dependent jurisprudence and institutional ideology rooted in founding principles (notably secularism). These mechanisms are analytically distinct from external “capture” dynamics.

6. Empirical Claims and Interpretive Limitations

6.1 Judicial decision patterns: The article presents quantitative evidence suggesting differential success rates of various political actors before the Constitutional Court. However, such findings require careful interpretation: case selection bias, variation in case complexity, institutional standing of petitioners and legal merit of claims. Without controlling for these factors, inference about “bias” or “capture” remains tentative.

6.2 Precedent deviation claim: The claim that the Court systematically deviated from precedent is particularly difficult to substantiate without detailed doctrinal analysis of case law evolution.

7. Causal Structure and Institutional Dynamics

7.1 Linear causality problem: The article presents a linear causal chain: institutional design, elite capture, judicial behavior and democratic erosion. This structure underestimates the recursive and interactive nature of institutional change.

7.2 Alternative dynamic model: Turkey’s political development is better understood as a sequence of: contested institutional authority, reciprocal escalation between judiciary and executive constitutional redesign following political crises and shifting coalitions of elite actors

7.3 Post-2010 transformation: The 2010 constitutional amendments represent not merely a correction of prior imbalance but a reconfiguration of judicial governance in favor of executive authority, illustrating that “capture” is not unidirectional.

8. Broader Implications for Democratic Theory

8.1 Beyond binary models: The article reflects a broader tendency in democratization studies to conceptualize political conflict as: elected vs non-elected, democratic vs authoritarian and captured vs independent. Such binaries obscure the existence of hybrid institutional orders in which legitimacy is distributed across multiple competing sources.

8.2 Parliamentary systems and democratic diversity: Parliamentary democracies demonstrate that democratic legitimacy can be constructed through indirect electoral mechanisms without reliance on direct executive elections.

9. Conclusion

This article has argued that “Bad Institutions, Worse Allies” offers an important but conceptually limited account of judicial politics in Turkey. Three main limitations were identified: mischaracterization of indirect electoral legitimacy, normative privileging of direct democracy and over extension of the “court capture” framework. A more robust analytical approach would conceptualize Turkey not as a simple case of elite capture but as a dynamic field of institutional competition involving multiple sources of democratic legitimacy. Such a framework not only improves explanatory accuracy but also aligns more closely with comparative constitutional theory.

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[1] Article is authored by O’Donohue, A. (2026). How Courts Undermine Democracy. Journal of Democracy 37(2), 65-77. https://dx.doi.org/10.1353/jod.2026.a986020.